[Cite as State v. Schlosser, 2016-Ohio-731.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

STATE OF OHIO 

Plaintiff-Appellee 

v. 

JOHN D. SCHLOSSER 

Defendant-Appellant 

 

Appellate Case No. 26888 

Trial Court Case No. 1994 CR 00389/1 

(Criminal Appeal from Common Pleas Court) 

 

DECISION AND FINAL JUDGMENT ENTRY

February 19, 2016 

PER CURIAM: 

{¶ 1} This matter is before the court on the State of Ohio’s motion to dismiss the 

appeal. The State asserts that the order on appeal, the trial court’s denial of John 

Schlosser’s motion for judicial release, is not final and appealable. Schlosser filed a 

response to the motion and a motion to accept his response out of time; the State filed a 
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reply. We sustain Schlosser’s motion to accept his response out of time. We also sustain 

the State’s motion to dismiss for lack of a final appealable order. 

{¶ 2} Schlosser appeals the trial court’s October 7, 2015 “Decision and Entry 

Overruling Defendant’s Motion for Judicial Release.” Schlosser previously filed, and the 

trial court overruled, a motion for shock probation in 1995, and a motion for super-shock 

probation in 2004. Because the offense was committed prior to July 1, 1996, the trial 

court construed the instant motion for judicial release (made pursuant to R.C. 2929.20 and 

R.C. 2929.201) as a motion for shock probation (pursuant to R.C. 2947.061). See State v. 

Coffman, 91 Ohio St.3d 125, 126, 742 N.E.2d 644 (2001) (“former R.C. 2947.061 is 

available to those who, like appellant, committed their crimes prior to this date”). The trial 

court then concluded that Schlosser was ineligible for shock probation under former R.C. 

2947.061, and that the court did not have jurisdiction to consider the motion due to 

Schlosser’s two previous motions. Schlosser appealed, and the State moved to dismiss 

for lack of a final appealable order. 

{¶ 3} It is well-settled that appellate courts have jurisdiction to review only final 

orders or judgments of the lower courts in their district. Section 3(B)(2), Article IV, Ohio 

Constitution; R.C. 2505.02. An appellate court has no jurisdiction to review an order or 

judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. 

v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). The Supreme Court 

of Ohio has held that “a trial court’s denial of a motion for shock probation is never a final 

appealable order.” Coffman at 126. This court is bound by Coffman. We recently held, in 

dismissing another appeal from an order overruling a motion for shock probation, that as a 

result of Coffman, 
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defendants lack the ability to challenge any facet of a trial court’s decision on 

shock probation, regardless of whether it contains legal error, factual error, 

or an abuse of discretion. A trial court’s decision, for example, that 

erroneously holds a defendant to be statutorily ineligible for shock probation, 

but which expresses a willingness to have allowed it, is entirely - and, in our 

opinion, unfairly - unreviewable. In contrast, some courts permit the State to 

appeal a trial court’s decision granting shock probation, affording to it the 

due process denied to defendants. E.g., State v. Young, 8th Dist. Cuyahoga 

No. 79113, 2001 WL 1671431, *2 (Nov. 29, 2001); State v. Moore, 2013-

Ohio-4454, 999 N.E.2d 223, ¶ 27-28 (7th Dist.). 

State v. McBroom, 2d Dist. Montgomery No. 26578, 2015-Ohio-4719, ¶ 4. We have 

invited the Supreme Court of Ohio to revisit the issue. At this time, however, this court has 

no jurisdiction to hear appeals from the denial of a motion for shock probation pursuant to 

R.C. 2947.061. 

{¶ 4} This court and others have also held that Coffman requires the dismissal of 

orders denying judicial release pursuant to R.C. 2929.20. See, e.g., State v. Greene, 2d 

Dist. Greene No. 02-CA-17, 2002-Ohio-2595; State v. Williams, 10th Dist. Franklin No. 

07AP-1035, 2008-Ohio-1906. Schlosser notes that some courts have allowed appeals 

from the two statutes, citing State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 

N.E.2d 963; State v. Strunk, 12th Dist. Warren No. CA2012-03-023, 2012-Ohio-5013; and 

State v. Rupp, 2013-Ohio-1847, 991 N.E.2d 732 (12th Dist.). These cases, like Young 

and Moore cited above, all involve appeals by the State, which are authorized by a 

different statute. State v. Burgess, 2d Dist. Greene No. 01-CA-87, 2002-Ohio-2594, fn. 2 
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(“The legislature has authorized the state to appeal only from an order granting judicial 

release to an offender who has been convicted of a felony of the first or second degree. 

See R.C. 2953.08(B)(3)”). To the extent that Schlosser’s motion was one for judicial 

release under R.C. 2929.20, the trial court’s denial thereof is not a final appealable order. 

{¶ 5} The remaining question is whether the denial of a motion pursuant to the 

new statute, R.C. 2929.201, is a final appealable order. That statute, entitled “Application 

for Shock Probation,” provides, in relevant part: 

Notwithstanding the time limitation for filing a motion under former section 

2947.061 of the Revised Code, an offender whose offense was committed 

before July 1, 1996, and who otherwise satisfies the eligibility criteria for 

shock probation under that section as it existed immediately prior to July 1, 

1996, may apply to the offender’s sentencing court for shock probation 

under that section on or after the effective date of this section. Not more 

than one motion may be filed by an offender under this section. 

R.C. 2929.201 became effective on September 15, 2014. 

{¶ 6} We discern no relevant difference between the new statute and its 

predecessor that would permit us to read into it a right of appeal that did not previously 

exist. Coffman at 127 (“In matters of probation and parole, we have steadfastly refused to 

recognize a right of appeal absent a clear directive from the General Assembly that an 

appeal may be prosecuted”). We conclude that the denial of a motion for shock probation 

under R.C. 2929.201, like the denial of a motion under R.C. 2947.061, is not a final 

appealable order. The new statute vests trial courts with the same discretion as the old; a 

defendant’s interest in both is the same, and does not, according to the Supreme Court, 
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“rise to the level of a substantial right.” Coffman at 129; R.C. 2505.02(B)(2); but see State 

v. McBroom, 2d Dist. Montgomery No. 26578, 2015-Ohio-4719, ¶ 2, quoting State v. 

Brandon, 86 Ohio App.3d 671, 675-676, 621 N.E.2d 776 (2d Dist.1993) (holding, prior to 

Coffman, that “[t]he ‘substantial right’ affected is the right of an offender to have the trial 

court exercise its discretion in ruling upon the motion for shock probation in a nonarbitrary 

and rational manner. In short, it is about the right of the offender to procedural due 

process”). The State of Ohio’s motion to dismiss is therefore SUSTAINED. Montgomery 

App. No. 26888 is DISMISSED for lack of jurisdiction. 

{¶ 7} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the 

Montgomery County Court of Appeals shall immediately serve notice of this judgment 

upon all parties and make a note in the docket of the mailing. 

 SO ORDERED. 

 

 MARY E. DONOVAN, Presiding Judge 

 

 MIKE FAIN, Judge 

 

 JEFFREY M. WELBAUM, Judge 

Copies to: 

Terry Lewis 

10 W. Second Street, Suite 1100 

Dayton, Ohio 45402 

Attorney for Appellant 

Christina Mahy 

301 W. Third Street, 5th Floor 

Dayton, Ohio 45422 

Attorney for Appellee 
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Hon. Timothy N. O’Connell 

Montgomery County Common Pleas Court 

41 N. Perry Street 

P.O. Box 972 

Dayton, Ohio 45422 

CA3/KY